The Legal Profession for Women
September 1893 — Woman’s Building, World’s Columbian Exposition, Chicago IL
The Constitution of the United States is to woman as an Emancipation Proclamation, in that it erects no barriers, imposes no limitations, sanctions no discriminations on account of sex. Tacitly implying the perfect equality of man and woman as citizens, alike entitled to life, liberty and the pursuit of happiness, its very silence concerning the status of woman is an eloquent pleading in her behalf.
Even in those countries where woman had been esteemed most happy, we find her debarred by the salic law, restrained by the canon law, coerced by the common law, subordinated by the civil law, misrepresented and robbed of freedom of will by the fictions of the statutory law. Whether enthroned as the idol of chivalry in one country, or bartered as chattels in another; whether affronted by poligamy, or tormented with a condition between indifference and contempt; whether immured by asceticism, or given the freedom of social expulsion; whether crowned with a halo of a Madonna, or dishonored with the stigma of a Magdalen, in every land and in every age she has been the one legislated against, the one excluded from the benefit and deprived of the protection of the law.
The Renaissance and Reformation, which indeed widened existing horizons, sketched no line of demarcation between the zenith of man’s prerogative and the nadir of woman’s proscription, but the great wave of Revolution — a self-consciousness and self-assertion of individuality — which had been gathering momentum for generations, culminated on the shores of the Western Continent. Our country is pledged to a mission of justice to the individual. There is no forcing back the waters of this tide, no “thus far and no farther.” Those who attempt to close the flood gates, to repair the old-time dykes, are wasting precious time which might better be improved in accommodating themselves to the requirements of the age. The undertow of this current has been undermining and sweeping away the accumulated debris of custom and tradition. The prejudices of race and religion have gone, and the disqualification of sex is disappearing by the free opening up of all professions to meritorious applicants.
That “custom is law,” is recognized as one of the fundamental maxims in ancient jurisprudence. For many ages advocates and judges tried to make all litigation rest on this “Procrustean bed.” The deformities and failures which resulted from their efforts, gave rise to a new code based on principles of justice and denominated equity. In no department of law is the change more marked than in its application to woman. The common law measured her with the “regulation girdle” of home-maker and home-keeper. She was commanded and compelled to fill her prescribed limit of obedience and servitude. She was subordinated and coerced, lest she outgrow the standard. Thus saith the old law: “The husband hath by law power and dominion over his wife, and may keep her by force within the bounds of duty, and may beat her, provided the size of the cane be no larger than his thumb.” The civil law gave to the husband the same or a greater authority over his wife.
What to do with woman has ever been one of the knottiest points of the law. At first, jurists thought to evade the issue by attempting to reduce woman to a ghostly nonentity; but, like Banquo’s ghost, she would not “down” at the command of her Macbeth. Next she was concealed beneath the garb of legal fictions, and under the guise of vested rights smuggled through the departments of the blind goddess.
One link after another in the myriad chains which fettered her freedom and independence has been broken, until she is now not only recognized in legal procedure, but admitted into the very halls of justice, as an officer of the court, and permitted to participate in its proceedings. She may not only advocate her own rights, but may plead the rights of others. She has left in the rear her former colleagues–infants, idiots and the insane — and almost overtaken her rivals of the fifteenth amendment.
Perhaps you recall some early morn after a night of storm and darkness, how the first gleams of light struggled through scarcely perceptible rifts in the clouds, closing and reopening as the billowy curtains of the night were swayed by the lingering tempest. Anon a roseate hue would tinge the receding clouds, then spread and change until the many colors were blended into clear effulgent light, and the golden sun looked from the dazzling sky. Then the whole stretch of earth became eloquent with voice of man and bird and the hum of industry.
Such has been the breaking of dawn to woman, after her long civil night. The Sapphos and Cornelias, the Esthers and Hortensias, were only fitful gleams amid the surrounding shadows of superstitious customs. From the age of chivalry, which tinged her career with the rosy light of sentiment and love, the changes were rapid. Great rays of light, like Queen Elizabeth, Madame de Stael, Hannah Moore and Florence Nightingale gleamed above the horizon. The legal fictions and the guardians of her person and property melted away like the mist, and the present century ushered in a day of life and activity for woman in every department of art, science, literature and the professions.
This achievement has not been instantaneous. No “open sesame” has miraculously placed within her reach this accumulated wealth of all vocations. No alchemy has transmuted the base elements of ignominy and degradation, to the noblest types of respect and equality. Woman has not obtained a place in the profession by “demanding her rights,” as Shylock contended for his pound of flesh, but like Portia, by unfolding the harmony and the correllation of legal and equitable claims.
The present century recognizes that the sphere of women is no longer a mooted question. Merit has no sex; and the meritorious lawyer, man or woman, who deserves success, who can both work and wait to win, is sure to achieve both recognition and reward.
Of the three so-called “learned professions” which are necessities of civilization, the legal profession has been perhaps the most reluctant to swing open its portals to admit in fellowship the former “pariahs” of legal procedure: nevertheless these majestic gates have in hundreds of cases responded to the reiterated taps of a woman’s hand. In some states requests for admission to the bar were unheeded, and the dockets are tarnished by the lawsuits which ensued ere the struggle for recognition was ended. Even supreme courts and legislatures have been importuned for opinions and special enactments, that woman might waive the custom of a proxy, and stand in suo jure, in the presence of the ermine. The woman lawyer has ceased to be a novelty. The United States inaugurated her reign, and like all American inventions, no matter how ultra and radical the innovation may appear, the indorsement of the inaugurator is a sufficient guarantee for its propriety and legality. Since June, 1869, upward of three hundred women have been admitted to practice law in the various state and federal courts, and at least one-third of these are in actual practice. It is as impossible to give the exact number of women lawyers in the United States, as it would be to state the actual number of practitioners among men. Twenty-two states have reported seventy-four women lawyers in active practice. Four states, Arkansas, Idaho, Indiana and Maryland have statutory prohibitions comprised in the words “male citizens.” In the remaining eighteen states and territories there is no agitation of the subject at present, but nothing in the laws to prevent their admission.
That the proportion of women engaged in the law is less than in the other professions is, in a measure, due to the peculiar requirements of the law. Woman may be the weakest in this profession, but in it she lifts with the longest lever the social and legal status of her sex. A certain sentimentality concerning sex, supplemented by her innate dread of criticism, are the two monstrous lions that intimidate her at the entrance to the Palace Beautiful.
Also it is no trifling education that is needed for successful competition in this profession. The ramifications of the law are infinite, and the successful lawyer must be versed in all subjects. The law is not a mere conglomeration of decisions and statutes; otherwise “Pretty Poll” might pose as an able advocate. A mind unadapted to investigation, unable to see the reasons for legal decisions, is as unreliable at the bar as is a color-blind person in the employ of a signal corps. The woman lawyer who demands an indemnity against failure must offer as collateral security not only the ordinary school education, but also a knowledge of the world and an acquaintance with that most abstruse of all philosophies — human nature. She must needs cultivate all the common sense and tact with which nature has endowed her, that she may adjust herself to all conditions. She must possess courage to assert her position and maintain her place in the presence of braggadocio and aggressiveness, with patience, firmness, order and absolute good nature; a combativeness which fears no Rubicon; a retentiveness of memory which classifies and keeps on file minutest details; a self-reliance which is the sin qua non of success; a tenacity of purpose and stubbornness of perseverance which gains ground, not by leaps, but by closely contested hair breadths; a fertility of resource which can meet the “variety and instantaneousness” of all occasions; an originality and clearness of intellect like that of Portia, prompt to recognize the value of a single drop of blood; a critical acumen to understand and discriminate between the subtle technicalities of law and an aptness to judge rightly of the interpretation of principles.
No more is required of woman than of man, for it is said: “God made her to match the men,” not rival them, but perhaps not one in ten of the men who enter the legal profession succeeds, and not one in fifty of these attains any degree of eminence.
It is premature to attempt to judge of the effect of women lawyers on the bar, for as a class they are yet minors. The universal verdict concerning their reception by their brothers-in-law is that of courtesy, kindness, and cordial welcome.
Even if woman’s achievements were placed at issue with those of the Alexanders, the Cæsars, the Hannibals and the Napoleons of the other sex, woman would not enter a nolle pros., nor lose her case by default, for it must be remembered that there are conquerors who do not inscribe the record of their conquests on the landscape, with sword and spear, nor write their victories with blood. In the enlargement of her legal privileges woman has invaded and conquered realms unknown to the Macedonian madman; by her identification with economic and political questions she has been an important factor in a type of civilization unimagined by the dread arbiter of Rome; in a successful campaign against civil disabilities and the allegations of incompetency she has executed vows more ennobling than the oath of the Carthaginian general, and in the uplifting of her sex she follows a diviner star of ambition than that which set at St. Helena. Contact with the world shows woman that she has not yet learned her strength. Acquaintance with history demonstrates that even such men as Webster, Clay and Douglas did not escape shipwreck on the troubled sea of worldly ambition.
It is particularly fitting for woman to enter the legal profession in view of her former status under the law. Where she has been most ignored, there should she vindicate her worthiness. Before that bar which at one time recognized her individualism, save when a criminal, should she demonstrate the dualism of sex. She who has suffered wrong should stand where wrongs are corrected.
In civil actions a large percentage of clients are women. In questions which involve foreclosure of mortgages, probating and contesting wills, collecting claims, settling estates, clearing titles, marriage and divorce laws, the custody of children, management of public schools and many others, it is not equitable for one sex to settle matters in which both have a vital interest.
In regard to the demand for women lawyers, it must be confessed that in the great mart called the world, where all classes of exchangeable things are regulated by the one universal law of “demand and supply,” the “calls” for Helens and Cleopatras and Eugenias exceed the demand for Portias and Deborahs and Hypatias. Woman herself must create a demand for her talents, by a broader education, by giving less attention to petty details of life and more attention to those of vital importance, by outgrowing the chrysalis of the butterfly, to enter the realm of a bold thinker. Insofar as women prepare themselves for lives of increased usefulness, broadening in every way, they receive recognition.
There is not encouragement for all women anxious for employment or a livelihood to enter the legal profession, for, as with men, it requires peculiar ability, both natural and acquired, to insure success.
Evidences of misfits are too frequently seen in all professions. No woman, therefore, who has no predilection for law should seek the profession. An eminent writer has said: “It requires two workmen to make a lawyer, the Almighty and the man himself. The legal mind is the workmanship of God, and no power beneath His can create it. Not possessing it, no one ever became a successful lawyer; with it, no one ever failed if he earnestly tried.”
Of the law it is said: “There can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempt from her power.” While America’s sons sit at the feet of this divine Law, let not the daughters be unmindful of the peculiar position which they occupy. While old customs are crumbling and hoary usages are tottering with decay, woman, emerging from the bondage and solitude of their ruins, offers in evidence her broken chains, mute witnesses that she has both felt the “power” and participates in the “care” of that law; therefore, her homage is due, and her voice needed with that of man to complete the harmony of the world.
In England there is a bird which builds its nest on the ground, but its note is never heard except when on the wing. “The skylark to the first sunbeam gives her voice; and, singing, soars.”
So above woman is an azure waiting to be filled with the melodious rapture of a new day. As long as she was confined by customs and laws in the obscurity of “vested rights,” her voice was never heard; but no sooner were the gates of a day of civil freedom unlocked than from press, pulpit, rostrum and the bar resounded her voice. If progress is to be real, men and women must go forth hand in hand along its many paths, and together advocate and promulgate principles of equity, while they bear aloft the standard of a universal jurisprudence as perfect in its application as is the law in theory.
Source: The Congress of Women Held in the Woman’s Building, World’s Columbian Exposition, Chicago, U.S.A., 1893, ed. Mary Kavanaugh Oldham Eagle (Chicago: Monarch book Company) 1894, 273-276.